As we prepare for a return to the workplace reducing health risk is of primary concern. One of the questions we’ve been receiving is can an employer test employees for COVID-19? Prior to the pandemic this was a much simpler question. The Equal Employment Opportunity Commission (“EEOC’) provided some guidance in this area in light of the ongoing pandemic.
On April 23, the EEOC updated its publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address employee COVID-19 testing:
May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?
The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity." Applying this standard to the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to uniformly administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. To start, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. As this information is changing as the science develops make sure you check back for updates. Finally, note that testing only reveals if the virus is currently present; a negative test does not mean the employee will not later become infected.
In addition to testing it is of paramount importance that protocols to prevent transmission of COVID-19 be developed, communicated and followed.
As testing availability opens up in this next phase of the pandemic, the EEOC has confirmed that employers may require COVID-19 testing as a condition of allowing employees to return to the workplace as long as it is done in a consistent and non-discriminatory manner to ensure test results are accurate and reliable. In addition, the employer should not share the results with anyone except the employee that was tested.